Van Waes v Blakeney

[2016] NSWLEC 1078

Land and Environment Court

New South Wales

Medium Neutral Citation:	Van Waes & anor v Blakeney [2016] NSWLEC 1078
Hearing dates:	4 March 2016
Date of orders:	04 March 2016
Decision date:	04 March 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Appeal upheld; pruning ordered
Catchwords:	TREES [NEIGHBOURS] Damage, potential injury; bats; pruning sought
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Clune v Falconer [2008] NSWLEC 1458 Moase v McMahon [2010] NSWLEC 1123 Ratay v Allen [2010] NSWLEC 1086 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category:	Principal judgment
Parties:	Kris Van Waes and Thimitra Kallaras-Van Waes (Applicants) Judith Blakeney (Respondent)
File Number(s):	21053 of 2015

Judgment

1. COMMISSIONER: The applicants purchased their Rockdale property in 2007. Growing on the adjoining property to the south is a large, mature Brachychiton acerifolius (Illawarra Flame Tree), part of the canopy of which overhangs the applicants’ back yard and part of a garage/ storage area at the rear of their property.

2. The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the pruning of the tree. The extent and nature of pruning is not detailed in the proposed orders.

3. The application is made on the basis that a branch fell from the tree and caused damage to a Frangipani tree growing on the applicants’ property and that further branches may fall and cause more damage to property or injury to anyone within the applicants’ property who may be within the vicinity of the tree.

4. The respondent values the tree for its amenity, in particular its flowers, and for the habitat it provides local wild life. The respondent opposes removal of the tree or any substantial pruning of branches overhanging the applicants’ land.

5. The hearing was held on site. Neither party engaged an arborist to provide any independent arboricultural evidence. Therefore the comments that follow are based on the arboricultural expertise I bring to the court. Rockdale Council’s Tree Management Officer and a Planning Assessment Officer also attended the hearing as the applicants have development consent for the construction of a garage and ancillary storage area at the rear of their dwelling. The consent was modified to include a condition of consent requiring the proposed storm water pipe between the garage and the existing storm water pipe to be located outside the drip zone of the Illawarra Flame Tree. This condition was imposed to ensure minimal risk to the tree.

6. The application claim form also contends that the tree is visited by bats and that this may be a potential risk to health. In regards to this contention, while s 7 enables an owner of land to apply to the Court for an order to remedy, restrain or prevent damage to property on an applicant’s land or to prevent injury to any person, the damage or injury must be a direct consequence of the tree. In Robson v Leischke [2008] NSWLEC 152 at [189], Preston CJ noted that the cause must be the tree itself and that the mere fact that the tree might provide habitat to animals or insects which cause damage does not mean such damage is “as a consequence of” the tree. He said:

189. Finally, the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat. Thus, although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees: see Immarrata v Mourikis [2007] NSWLEC 601. Similarly, the fact that an animal which has caused, is causing or is likely to cause in the near future damage to property on adjoining land, uses a tree as habitat, such as for feeding, roosting or nesting, does not result in the tree itself having caused, causing or being likely to cause in the near future damage to the applicant’s property: Dooley v Newell [2007] NSWLEC 715 at [22]-[23].

7. Similar findings are found in Clune v Falconer [2008] NSWLEC 1458 with respect to mosquitoes and termites, in Moase v McMahon [2010] NSWLEC 1123 at paragraphs [17] to [19] with respect to bats, and in Ratay v Allen [2010] NSWLEC 1086 in regards to cockatoos. Therefore this element of the application is beyond the Court’s jurisdiction.

8. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b)   is likely to cause injury to any person.

9. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…”.

10. The only evidence of branch drop adduced by the applicants is contained in an affidavit sworn by Ms Kallaras – Van Waes which contains a number of photographs. While this was filed much later than directed by the Registrar, I allowed it into evidence on the basis that is did not prejudice the respondent’s case. The affidavit states that a branch fell in 2014 and damaged a small Frangipani tree. The photographs are of little assistance as they simply show a dead branch on a pile of pallets and while the Frangipani appears in one of the photographs, there is nothing to illustrate any damage caused to it as a consequence of the branch. The Frangipani has since been removed as it was on a lean and the applicants considered it dangerous.

11. Notwithstanding the scant evidence, I observed a small number of dead branches within the otherwise very healthy canopy as well as several dislodged branches or “hangers” caught in the tree. I saw no obvious structural defects. The gradual phasing out of internal and lower branches is a normal outcome of tree growth and therefore the eventual failure of dead branches is predictable. It is therefore beyond the hypothetical that falling dead branches could cause damage to property on the applicants’ land or could cause injury to anyone.

12. Therefore I am satisfied to the extent required by s 10(2) that the Court’s jurisdiction under s 9 of the Act, to consider what, if any, orders should be made, is engaged.

13. Before doing so, I must consider the relevant matters in s 12 of the Act. Of relevance is that the tree is an excellent specimen which is valued by the respondent; it is clearly visible from the public domain and must be quite spectacular when in flower. I note that the applicants do not wish to have the tree removed. The removal of dead wood, if carried out in accordance with the Australian Standard for Pruning of Amenity Trees, will have no adverse impact on the health of the tree. Whilst the extent of pruning sought is not specified, the removal of any significant overhanging living branches would not only detract from its appearance but potentially compromise its health and vitality. The respondent states that the trees are regularly inspected by an arborist.

14. Having viewed the tree, heard from the parties, and assessed the evidence, I am satisfied that orders should be made for the biennial removal of dead and dislodged branches from the tree. This time frame should be sufficient to maintain the tree in a safe condition.

15. Therefore, in conclusion, the Orders of the Court are:

1. The application is granted.

2. Within 30 days of the date of these orders, the respondent is to engage and pay for an arborist with a minimum AQF level 3 qualification in Arboriculture to remove all dead wood greater than or equal to 40mm at its base, as well as all hanging or dislodged branches, from the canopy of the Illawarra Flame Tree.

3. The work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the NSW WorkCover Code of Practice for the Amenity Tree Industry or its equivalent.

4. If required by the arborist, the applicants are to provide all reasonable access on reasonable notice for the purpose of quoting and or the safe and efficient carrying out of the works in order (2).

5. The works in order (2) are to be carried out every two years, within two weeks either side of the anniversary of the first pruning, until such time as the tree is removed. Orders (3) and (4) apply.

_____________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 04 March 2016